To former military police Master Sgt. Lisa Girman and two of her fellow soldiers, May 12 was just "another night in the desert" restraining unruly Iraqi war prisoners. But in January, the three Pennsylvania MPs were discharged from the military for kicking and punching Iraqis, including one allegedly linked to the ambush of the Jessica Lynch convoy. [Editor's note: In the original version, Girman's name was misspelled.]
In a similar case, a Marine guard testified in February that beating uncooperative Iraqi detainees was common. In all, eight Marines have been charged for mistreating detainees, one of whom died in custody.
Now, the US military has charged six more American soldiers with assault, indecent acts, cruelty, and maltreatment in connection with the alleged abuse of as many as 19 detainees at the Abu Ghraib prison west of Baghdad.
From detainee abuse to the excessive use of force and disputed killings of civilians, the Iraq conflict is producing its share of legal and ethical lapses by US service members, despite strenuous efforts by US commanders to avoid them.
The breaches involve only a tiny fraction of the more than 150,000-strong US occupation force, which military ethicists and human rights groups have given generally good marks for their comportment in Iraq. Still, such violations could cause disproportionate damage to the US military's image among Iraqis.
"The forces of gravity that drag you down to the level of your enemy are very powerful," says Albert Pierce, director of the Center for the Study of Professional Military Ethics at the US Naval Academy. "Sometimes they are inherent in conflict, sometimes they are part of an inherent strategy by the enemy," he says, adding that US commanders are making an "extraordinary effort" to resist such forces.
Tensions could grow over such infractions if, as expected, US forces continue to operate free from Iraqi legal jurisdiction following the July 1 transfer of power from the US-led coalition to Iraqi authorities. US officials say they hope to reach an agreement with Iraqi leaders this month on what the legal status of US forces will be. "We will not have a period of time when our forces are without protection," Peter Rodman, assistant secretary of Defense for international security affairs, told a House hearing earlier this month.
Normally, agreements on the status of US forces based abroad grant a degree of jurisdiction over them to local courts, but Iraq could prove an exception, says Georgetown University law professor Anthony Arend. "I could see the US saying, the [Iraqi] court system is not well enough established, and we don't believe US forces could get a fair trial, so we reserve the right to try them under any circumstance."
Maltreatment of Iraqis is not the only problem that has sparked US military investigations and legal or disciplinary action. US service members have also been accused of victimizing each other. The Army's Criminal Investigation Command has probed allegations of felonies by US soldiers in Iraq such as sexual assault, larceny, and smuggling, and the Army has set up a hotline for reporting sexual assault.
Still, perhaps the most serious ethical issues derive from the US military's status as an occupying force, and the special obligations that implies for safeguarding Iraqis. "The US fails to meet its legal and moral responsibilities to Iraq as long as it fails to provide adequate security for the Iraqi people," writes Neta Crawford, associate professor of international affairs at Brown University, in "Principia Leviathan: The Moral Duties of American Hegemony."
So far, the major charges against US service members have involved the treatment of detainees. In the latest case, six US soldiers were charged on Saturday with crimes including "conspiracy, dereliction of duty, cruelty and maltreatment, assault, and indecent acts with another" in connection with alleged detainee abuse last November and December at the Abu Ghraib facility.
The six charged as a result of a two-month military investigation are from an original group of 17 soldiers and commanders who were suspended from duty but remain in Iraq. The military is withholding the soldiers' names until an Article 32 hearing, similar to a grand jury, determines whether they will face trial.
US military officials say they are working hard to root out abuses such as those alleged at Abu Ghraib before they spread. The military has also paid thousands of dollars to compensate for the injury, death, or property damage inflicted on innocent Iraqis by US forces.
Last week, an Amnesty International report on human rights in Iraq over the past year stated that "scores of civilians have been killed apparently as a result of excessive force by US troops, or have been shot dead in disputed circumstances."
"Yes, there have been, sadly, cases where soldiers have operated outside established, trained rules of engagement and rules for the use of force," said Brig. Gen. Mark Kimmitt, deputy director for coalition operations in Baghdad, on Monday. But he noted that "while each of those cases is nothing to take great pride in, the fact is that 99-plus percent of the soldiers are operating well within those rules of engagement, under very tough conditions, showing remarkable restraint."
Military lawyers say they must constantly reassess the rules of engagement as the line between the enemy and the innocent grows increasingly blurry in today's battle zones such as Iraq.
"Terrorism and the conflict you face in Iraq now is not the classic war that the rules of war are formulated for," says Thomas Grassey, chair of leadership and ethics at the Naval War College in Newport, R.I. "The law of armed conflict reflects a more classical pattern of guys wearing uniforms and carrying guns," says Mr. Grassey, "so the insurgents are a challenge" for military lawyers.
Indeed, as US troops fight a stubborn guerrilla insurgency and terrorist threat while under obligation to protect Iraqi civilians, they face a moral landscape that is in many ways more complex than in past wars.
"The question is, how vulnerable do you want your people to be in the postwar phase?" when the military's role shifts to safeguarding the civilian population and providing for basic needs, says Rear Adm. Louis Iasiello, chief of chaplains for the US Navy and an expert in just-war theory.
Debate over whether a war is justified, and conduct during the war, needs to extend to the aftermath of the conflict, he says. "Commanders have to keep that right intention, to establish a just and lasting peace" in the postwar period, Admiral Iasiello says.